Lawfulness of Taxation
According to the principle of the legality of taxation , taxes in Germany may only be levied on the basis of a law ( Article 2, Paragraph 1 and Article 20, Paragraph 3 of the Basic Law ). This principle is set out in simple law in Section 85 of the Tax Code .
Tax laws
Law in the sense of tax law is every legal norm ( § 4 AO). Legal norms are
- Supra-national regulations, e.g. B. EC directives
- Double taxation agreements which become national law through transformation according to Art. 59 Para. 2 GG
- Constitutional provisions (i.e. in Germany from the Basic Law )
- Federal laws and ordinances
- State laws and ordinances
- Statutes of the municipalities, e.g. B. Articles of Association on the Business Tax Rate
Administrative orders (also known as administrative guidelines), on the other hand, are only internal regulations without legal character that bind the subordinate authorities. An administrative order of the federal government binds not only the federal but also the state financial authorities ( Art. 108 Abs. 7 GG).
Non-retroactivity
Since, according to the principle of legality, taxation may only be carried out if the taxable event has previously been standardized, the so-called real retroactive effect of tax laws is fundamentally inadmissible. It occurs when a law intervenes in closed situations and changes related legal consequences to the detriment of the taxpayer. A retroactive effect favoring the citizen is also possible with tax laws, e.g. B. in the form of a subsequent increase in child benefit for a completed assessment period.
Tax collection obligation
Finally, it follows from the principle of legality of taxation that the tax authorities are not only entitled, but also obliged to collect the taxes owed by law. Tax exemptions may only be granted on a legal basis.
Prohibition of analogy
Another consequence of the principle of legality is the prohibition of tax-aggravating analogies.
